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M. Gopalakrishna Menon Vs. K.P. Vellakutty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1041 of 1948
Judge
Reported inAIR1953Mad399; (1952)2MLJ34
ActsTransfer of Property Act, 1882 - Sections 111; Code of Civil Procedure (CPC) , 1908 - Sections 64
AppellantM. Gopalakrishna Menon
RespondentK.P. Vellakutty
Appellant AdvocateD.A. Krishna Variar, Adv.
Respondent AdvocateN. Sundara Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredRamunni v. Kerala Varma Valia Raja
Excerpt:
- - the defendant raided the plea that, if the lease ceased to be operative upon the death of the lady, he was entitled to fail back upon another lease, which was in existence, when the permanent lease was granted by tne widow. the learned judges in holding that the lease of 26-10-1869 did not operate as an implied surrender of the prior lease, made the following observations at page 978: it is well-settled that an implied condition of surrender by operation of law is that the new lease should be a valid one......in possession under his earlier oral lease. the defendant pleaded, inter alia, that there was an implied surrender of the earlier lease by the execution of ex. p. 1, and, therefore, the plaintiff would not be entitled to possession. the learned district munsif held that the implied surrender was not valid, since ex. p. 1 was not operative, having been created while the attachment was pending over the properties. in appeal, the learned subordinate judge took the same view and held that, as ex. p. 1 was inoperative and invalid, the respondent should be deemed to be in possession as lessee under the earlier lease. the defendant preferred the above second appeal.2. the learned counsel for the appellant contended that the execution of ex. p. 1 operated as an implied surrender and that the.....
Judgment:

Subba Rao, J.

1. The question raised in the second appeal is one of implied surrender of a lease. The plaint schedule items of property were owned by the kanoor tarwad. In the partition, that was effected between the members of the tarwad, the said items were set apart to the share of Chamukutti Nair. The plaintiff, who was holding the said items under a prior lease, attorned to him. There was an agreement between the plaintiff and Chamukutti Nair, in and by which the plaintiff was allowed to continue in possession of the properties on a rental of 334 paras of paddy from 1940-31. On 16-2-1943, the plaintiff executed a pattomchit, Ex. P. 1, where-under the rent payable was fixed at 264 paras of paddy. Meanwhile, the defendant, who obtained an assignment of the decree obtained against Chamukutti Nair, attached the said properties, brought them to sale and purchased them on 19-3-1945 and took delivery on 30-8-1945. It may bo mentioned that the attachment was prior to the date of Ex. P. 1. The plaintiff filed O. S. No. 236 of 1945 for recovery of possession of the property from the defendant, mainly on the ground that as Ex. P. 1 did not come into effect, he would be in possession under his earlier oral lease. The defendant pleaded, inter alia, that there was an implied surrender of the earlier lease by the execution of Ex. P. 1, and, therefore, the plaintiff would not be entitled to possession. The learned District Munsif held that the implied surrender was not valid, since Ex. P. 1 was not operative, having been created while the attachment was pending over the properties. In appeal, the learned Subordinate judge took the same view and held that, as Ex. p. 1 was inoperative and invalid, the respondent should be deemed to be in possession as lessee under the earlier lease. The defendant preferred the above second appeal.

2. The learned counsel for the appellant contended that the execution of Ex. P. 1 operated as an implied surrender and that the fact, that it was executed after the attachment, would not affect the question as, though the lease was void against all claims enforceable under the attachment, it was otherwise valid. He also contended that, if it operated as substitution of the earlier lease, the circumstance that subsequently the leasehold properties were brought to sale and purchased free from the lease deed, would not invalidate the surrender that was already effected.

3. A lease of immovable property may be determined in any of the modes prescribed under Section 111, T. P. Act. The relevant provision of Section 111 reads:

'111. A lease of immovable property determines(f) by implied surrender

Illustration to Clause (f) : A lessee acceptsfrom his lessor a new lease of the property leased, to take effect during the continuance ofexisting lease. This is an implied surrender ofthe former lease, and such lease determinesthereupon.'

4. A leading decision on the scope of an implied surrender is --'Doe d. Egremont V. Courtenay (1848)11 Q.B. 703. The following neat statement of law on the subject by Coleridge J. may be quoted :

'Where the new lease does not pass an interest according to the contract, the acceptance of it will not operate as a surrender from the acceptance of a new lease, a condition ought also to be understood as implied by law, making void the surrender in case the new lease should be made void and in case of an express surrender so expressed as to show the intention of the parties to make the surrender only in consideration of the grant, the sound construction of such instrument, in order to effectuate the intention of the parties, would make that surrender also conditional, to be void in case the grant should be made void.'

The said principle was accepted and applied by Farewell L. J. in --'Zick v. London United Tramways', (1908) 2 K.B. 126. In --'Jamini Mohan v. Debendra Narayan', 71 Ind Cas 976, the Calcutta High Court applied that principle to a. case arising under Section 111, T. P. Act. There the facts were : A Hindu widow granted a permanent lease at a fixed rent to the predecessor-in-interest of the defendant. The reversoner filed the suit to recover possession on the ground that the lease granted by her was in excess of her authority as a Hindu widow. The defendant raided the plea that, if the lease ceased to be operative upon the death of the lady, he was entitled to fail back upon another lease, which was in existence, when the permanent lease was granted by tne widow. The question in that case was whether the acceptance of the lease of 26-10-1869 by the predecessor of the defendant must be taken to be equivalent to an implied surrender of the prior lease. The learned Judges in holding that the lease of 26-10-1869 did not operate as an implied surrender of the prior lease, made the following observations at page 978:

'It is well-settled that an implied condition of surrender by operation of law is that the new lease should be a valid one. Accordingly, a lease which is void or voidable or which does not pass interest according to the contract of the parties does not operate ss a surrender.' Much the same view has been expressed by Collins C. J. and Shephard J. in --'Bamunni v. Kerala Varma Vana Raja', 15 Mad 163. In that case, the 'karnavan' of a Malabar 'ko Vila gain' executed a 'kuikanom' lease of certain land in 1840 and in 1861 his successor demised the same land to the same tenants in perpetuity. The next .karnavan' sued in 1889 to recover possession of the land. The learned Judges held that the perpetual lease, as being of an improvident character, was 'ultra vires' and void and, therefore, the execution of that lease would not have the effect of a valid surrender of the prior lease, The learned Judges stated at page 167 : 'In our judgment, however, any surrender by operation of law that might have ensued on the taking of the perpetual lease was nullified by the plaintiff's repudiation of the perpetual lease. The surrender must fall to the ground with the transaction on which it is supported.' The learned counsel for the appellant attempted to distinguish these cases on the ground that the subsequent leases in both the cases were void from the inception, whereas in the present case, the lease was void only against all claims enforceable under the attachment but otherwise valid. Section 64, C. P. C., which invalidates transfers made after attachment runs as follows:--'Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.'

It is true that, under this section a transfer is not absolutely void, that is, void as against all the world, but void only against all the claims enforceable under the attachment. So too, the permanent lease executed by the widow in --'Jamini Mohan v. Debendra Narayana', 71 Ind Cas 976 and that executed by the 'Karnavan' in --'Ramunni v. Kerala Varma Valia Raja', 15 Mad 163. The alienations there were also voidable in the sense that it was open to the reversioner in one case and the succeeding karnavan in the other case to elect to treat them as invalid. The real principle is not whether a transaction is voidable or void, but whether it conveyed any interest according to the contract of the parties. The law implies a condition that the surrender would be invalid, if the transaction, on which the surrender rests, turns out to be void. In the present case, Ex. P. 1 was executed when the attachment by the defendant was subsisting and, therefore, was void as against all claims enforceable under the attachment. The defendant brought the property to sale and purchased it himself. His sale by reason of Section 64, C. P. C., was not subject to the lease created by the original owner subsequent to the attachment. In view of the events that happened. Ex. P. 1 turned out to be a void document and the condition implied, viz., where a new lease does not pass an interest according to the contract, the acceptance of it will not operate as a surrender of the former lease, would operate and, therefore, the latter transaction could not effectuate as an implied surrender. There is no force in the learned counsel's argument that if the debt was paid off or the attachment ceased for one reason or other, Ex. P. 1 would have conveyed interest, for in that case, Ex. p. 1 would have been put into effect and the implied condition would not have been broken. I, therefore, agree with the court below that there was no implied surrender of the earlier lease and the plaintiff is entitled to a decree for possession.

5. The second appeal fails and is dismissed with costs. No leave.


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